Page:United States Statutes at Large Volume 120.djvu/2639

 120 STAT. 2608

PUBLIC LAW 109–366—OCT. 17, 2006

‘‘949m. Number of votes required. ‘‘949n. Military commission to announce action. ‘‘949o. Record of trial.

Applicability.

VerDate 14-DEC-2004

09:16 Jul 13, 2007

‘‘§ 949a. Rules ‘‘(a) PROCEDURES AND RULES OF EVIDENCE.—Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense, in consultation with the Attorney General. Such procedures shall, so far as the Secretary considers practicable or consistent with military or intelligence activities, apply the principles of law and the rules of evidence in trial by general courts-martial. Such procedures and rules of evidence may not be contrary to or inconsistent with this chapter. ‘‘(b) RULES FOR MILITARY COMMISSION.—(1) Notwithstanding any departures from the law and the rules of evidence in trial by general courts-martial authorized by subsection (a), the procedures and rules of evidence in trials by military commission under this chapter shall include the following: ‘‘(A) The accused shall be permitted to present evidence in his defense, to cross-examine the witnesses who testify against him, and to examine and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing, as provided for by this chapter. ‘‘(B) The accused shall be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title. ‘‘(C) The accused shall receive the assistance of counsel as provided for by section 948k. ‘‘(D) The accused shall be permitted to represent himself, as provided for by paragraph (3). ‘‘(2) In establishing procedures and rules of evidence for military commission proceedings, the Secretary of Defense may prescribe the following provisions: ‘‘(A) Evidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person. ‘‘(B) Evidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or other authorization. ‘‘(C) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title. ‘‘(D) Evidence shall be admitted as authentic so long as— ‘‘(i) the military judge of the military commission determines that there is sufficient basis to find that the evidence is what it is claimed to be; and ‘‘(ii) the military judge instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence. ‘‘(E)(i) Except as provided in clause (ii), hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission if the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide

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